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HomeMy WebLinkAbout1962-09-10Monday - September 10, 1962 Regular Meeting The Planning ~oardheld their regular meeting on Monday evening, Sept. 10, 1962 at 7:30 P.M. in the TownBuilding with the following members present: James M. Bannan, Chairman; Robert J. Burke, Secretary; Howard Gilman, George Farleyh and ~illiam Chepulis. Atty. John J. Willis appeared before the Board to request a hearing for a sub-division for the land off Mass. Ave. that had been re-zoned at March Town Meeting. The land was re-zoned under Nazaire Giard. This hearing will be for Wil-Mac Realty Trust and will be held on Oct. I at 7:30 P.M. Mr. Willis showed a copy of a plan of the lay-out of the lots and said that there were slight changes in the sizes of some of the lots, but they still meet the requirements. He asked ~at was required of the various departments and was told that the Board of Public Works should give him the costs of water and sewer; the Highway Dept., the Cost of of surface drains, cost of building road, where catch basins are to be located and where water will run into. Contact Fire Dept. about location of fire hydrants. The plans include 6 lots which do not need approval of the Planning Board, but were put on the plan to avoid confusion. Mr. Chepulis made ~ motion to call a hearing for October 1, 1962 at 7:30 P.M. Nm. Farley seconded the motion and the vote was unanimous. The Board reco,.~.~ended to Mr. Willis that a hot-top road be put in end to get the figures from the Highway Dept. as to the cost of a hot-top road. The Board referred to the minutes of June 4, 1962 where the Board voted to require hot-top roads. Atty. Stephen Lopiano and Roy Fart appeared before the Board with Plans that were requested by the Board showing more information as to the roadway andwhere the end of the road would be. Atty. Lopiano and Mr. Farr said they would connect the sewer to Wood Lane and on the front lot to ~ickering Road. Mr. Bannan said they could not grant a turna- round and Mr. Farr explained that theywill finish the street to Wood Lane. The sewer is about 300 feet fromAdams Ave. They have the figures from the Highway Dept. for hot-top road. The catch basins are marked on the plans. They will put up a covenant and will do everything on the road before building. They had a hearing before the Board of Appeals and were granted a Special Permit for garden apartments. Mr. Gilman made a motion to accept the plans as is and that new plans be made to= show the whole street. Mr. Burke seconded the motion and the vote was unanimous. After the gentlemen left, Mr. Bannan designated Mr. Gilman chairman and stepped down to make the following motion that on plans not needing the approval of the Planning Board, for the Registry, require 3 signatures. Mr. Chepulis seconded the motion. Fnurmembers voted in favor ~nd Mr. Burke voted no. }~. Burke asked if it should require the signature of the Chairman also; and Mr. Bannan said that any 3 members could sign. M~. Barman then made a motion that 3 members must sign for releases of covenants on sub-divisions. Mr. Burke seconded the motion and the vote was unanimous. Sept. 10, 1962 - Cont. At 8:10 P.M. the newspaper reporter was present, Mr. O'Leary, ~M~'Harold MorleY, and Arthur Dr~.~,~ond mbo arrived later. These members of the Board of Appeals were present to meet with the Planning Board as requested. Mr. Lurid could not be present. Mr. Burke and Mr. Gilman are members of both boards. Mm. Barman explained that the reasons for the meeting were to discuss the variances granted by the Board of Appeals; that 2 members of the Planning Board feel that certain variances granted were illegal, Mr. O'Leary asked if the Planning Board received notices of the Board of Appeals hearings. Mr. Bannan said they did and that Planning Board members were present. Mr. Barman said that the question in the Planning Board's mind is that the By-Law specifically prohibits the use specified in the decision granting George Farkas a special permit to sell used cars, since it .is in an Industrial area. A~. Morley said that the power of the Board of Appeals is specified under the General Laws, Chapter 4GA, Sec. 15, that they have the power to do as they want and are not bound by the Zoning By-Laws. Mr. Bannan: '~ou~re not entitled to re-zone." Atty. Morley~ 'We did nothing wrong under that section of the General Laws, that deals with the powers of the Zoning Board of Appeals. Mr. Chepulis: '~on:t you interpret what the intent of the Zoning By-Law is?" Atty. Morley: "The Board of Appeals deals with specific pieces of property, other~rise everything would come under the Planning Board." Mr. ~hepulis: "Is the Board of Appeals guided by the Zoning By-Laws in making their decisions? (He then r earl the decision of the Board of Appeals concerning Farkas) There is nothing in the By-Law that allows a special permit for that use." Atty. Morley explained that the Board of Appeals considers a specific piece of land, that has a non-conforming use that's been approved; outside of the by-laws, is only permissable when permitted from the Board of Appeals. It has to be a special permit. Nobody contested it at the hearing, you assume it's right if nobody contests, you would assume that a gas station would have a repair service. Mr. Gilman said all stations have it. Mr. C~epulis: "The reasons for granting the special permit are in direct contra- diction of the by-laws. No decisions are rendered in favor of one person no matter how much financial hardship is involved. ~tty. Morley: '1~e had a permit, right or. wrong, and to take it away is a hardship." Mr. Burke asked ~hy Farkas had to go to the Board of Appeals. Mr. O~Leary explained that the Planni~ Board got into it 'in the beginning and com- plained to t~he Selectmen and they in turn referenced it to the Board of Appeals. Sept. 10, 1962 - Cont. Mr. Baunan: "I wrote to the Selectmen questioning the legality of the license and at no time did any member suggest going before ~he Board of Appeals. The Selectmen have full authority to grant or deny a license. He has still been running the business since his license expired June 30th. The Planning Board had a vote of 3-2 to take action against the Board of Appeals." Mr. ~epulis: "As a Planning Board, there are obligations on our part to see that the By-Laws are not violated. I feel there is a definite violation. The public good has been affected. The Board of Appeals has allowed something that is in direct violation of the Zoning By-Laws. To allow this special permit leaves the door open for anybody to come in and ask for the s~me thing." Atty. Morley: "You just want to substitute your judgment for ours." Mr. Bannan: We figured the proper procedure was to let the courts decide a mnte question. We have to get permission of the Selectmen to have Town Counsel bring snch action to Superior Court. Three members voted for such action. Itts to protect the townspeople." Mr · OtLe~ry: "The zoning by-laws have l~een made and it is your duty as a Planning Board to see they are c~-~.ied out." ¥~. Bannan: ~To recommend changes in zoning." Mr. Morley: "The purpose of the Board of Appeals is to vary the Zoning By-Laws' Every case we have violates the By-law, w~ vary the ter~ of it - that's the function of the Board of Appeals. You can't take care of every situation in the' By-laws. In this case we have varied the terms of the By-law and you dontt lik~ it. Alot of people don't, but we have to take each individual case as we see Mr. Chepulis: "If the intent or purpose of the Zoning By-Law was to allow such permission, it would say so, in this case it expressly prohibits such use." Mr. Morley: Is there anything in town that allows the sale of used cars. Every- thing we do is in violation - you agreed to that. This permit was issued by the Selectmen, we had nothing to do with it. (He read Sec. 15 of the General Laws - the Statutory powers given to the B~ard of Appeals by the Legislature). It has nothing to do with the Zoning By-Laws." Mr. Chepulis: It is'the duty of the Board of Appeals to uphold the Zoning By-Laws. Mr. Morley: "That's right. - in general." Mr. Chepulis: "I don~t think you have the power if it's against the By-Laws." Mr. Morley: "Everything we do is in direct contradiction. People can ask for variances but it doesn't mean they'll get it. The Board considers each as a separate case. (Asked for letters from Town Counsel and read a letter concerning the powers of the Board under the General Laws. ) Mr. Che~,l~s: "I admit that your powers come under the General Laws. Then N,A. doesn't have any control 'over what goes on i~ t~." Sept. 10, 196~: - Cont. Mr. Morley: "They get published notices. Every hearing changes the By-Laws. The By-Laws are used as a guide. A variance refers to lot size, side, rear requirements, etc. A special perm4t is a variance by use. The Board has the power to vary either one. Bill, you don't want to admit everything contradicts the By-Law. The hearings are all .run legally, all notices are sent out as required, advertised, etc. Mr. Barman: "Do you know anything about this notice for A~bert Eneupfer?" Mr. 0'Leary and Mr. Morley: "We dontt look at the notices until the night of the hearing, other~se we would be bothered by phone c~11 s." Mr. Bannam: "~e got together to solve th~ngs in a friendly way." Mr. Morley: "Ordinarily you are not concerned with our cases." Mr. Barman: "Herets o~e that concerns." Mr. G~lm-n: "Do you th~k that's good for the town?" Mr. Barman: "Yes." Mr. O'Leary: "No." Mr. Farley: This man has had a license for 2 years and he has an i~vestmant. I think the Board of Appeals had the same thought and that he had been workt-g under a permit issued by the tow~ of North Andover. This is a rare e~ception." Mr. Chepulis: "That doesn't m~e it right." Mr. Burke made a motion to adjourn the meeting with the Board of Appeals. Mr. O'Leary: The Board of Appeals would like to have copies of any amendments to the Zoning By-Laws. Mr. Barman: "You should get them." Mr. OtLeary: "We donft get them." Mr. Marley: "The purpose of the Plam-t~g Board is to m~ke the people conform to the By-Laws. The purpose of the Board of Appeals is to vary the terms of the By-Laws." Mr. Chepulis: "The function of the Planning Board is to plan for the town, for the present and for the future. The Board of Appeals will not reconsider its decisions, is that right?" Mr. O'Leary: "Thatfs right, everything as it is." The Board of Appeals then left. Mr. John Koistra spoke to the Board and showed his plans of land on Elmcrest Road. He was told to apply for a variance from the Board of Appeals. Sept. 10, 1962- Cont. The Board then discussed the meetin~ with the Board of Appeals. ~ir. Burke -~de a motion to take no action. Mr. Farley seconded the motion. Mr. Chepulis said Mr. G~l~ should disqualify himself since he ~s on the Board of Appeals and involved in this matter. Mr. Barman said that according to Town Counsel there is no way of disqualifying. Mr. Burke said that itt s a separate Board and they m~de their decision. Mr. Gib_man said there is no set pattern, each case is individual. Mr. Barman said he would not accept a negative motion. He designated Mr. Gilman to be Ohairm~ and stepped down. Mr. Chepulis made a motion to take action. G~l~n, Mr. Burke and Mr. Farley voted NO. The Board signed the following bills'. N.E. Tel. & Tel. Co. Anna Donahue The meeting adJc~xrned at 9:30 P.M. Mr. Barman seconded the motion. Mr. Mr. Chepulis and Mr. Barman voted XES. 8.35 20,00 828.35 Chairm-~ Clerk